Private member's bill threatens Canada's public broadcaster

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C-461, a private member's bill, has moved quickly through the House of Commons and is now about to receive Third Reading approval before it goes to the Senate and then becomes law.

The media has paid scant attention to the actual content of Bill C-461 (see background notes). As a result Canadians are not aware of how this legislation will change the Access to Information and the Privacy Acts in ways that could undermine the journalistic and programming integrity of Canada's public broadcaster, the CBC/Radio-Canada.

We ask Canadians to tell their MPs and their Senators to reject this attempt to weaken the CBC.

Here are our concerns with Bill C-461:

1) C-461 isn't needed.
Bill C-461 is based on the assumptions that the current Access to Information Act (ATIA) is unclear and the CBC needs to be more accountable.

In fact, after several years of deliberations by the courts, the ATIA is now very clearly defined – and it is working effectively. The Information Commissioner of Canada has given the public broadcaster an “A” grade for the timeliness of its access to information responses. In addition, the current Access to Information Act grants the CBC the power to provide strong protection for its confidential journalistic sources while guaranteeing its independence from government and its inherent right to free expression. The new law would require several test cases and years of court proceedings to produce clear guidelines for its application. The insight and clarity produced by past years of judicial deliberation on the ATIA would be lost.

The CBC is also held accountable to Canadians by a government-appointed board of directors, by the Auditor-General's review of finances, by CBC reports to Parliament, and by licensing reviews by the CRTC.

2) C-461 threatens the CBC's journalistic integrity.
Parliamentary democracies such as the U.K., Ireland and Australia give their public broadcasters strong protections under freedom to information laws, allowing them to exclude journalistic, creative, and programming documents.

As currently amended, C-461 does provide some protection for the CBC's confidential journalistic sources (see below). However, everything else that involves journalism, news gathering and reporting – including reporters' notebooks, travel plans, interview strategies and budget – is on the table for access requests. The CBC may refuse to disclose such information if it would hinder the CBC's “journalistic, creative and programming independence.” But this is a very narrow and vague term – in the context of the CBC it is usually taken to mean “independence from government” – and could allow third parties, and even the subjects of journalistic investigations, to acquire information about those investigations. The CBC's journalistic integrity and its inherent right to freedom of expression could be damaged. Additionally, the identity of sources could potentially be deduced by such data.

3) C-461 could undermine the CBC's position in the media marketplace.
Bill C-461 also allows media competitors of the CBC to request information about CBC business matters, including programming, staffing, budgets, external contracts, travel, business strategies and other creative endeavours. Some of this material must already be disclosed under the existing access legislation. Parliamentarians need to assess the degree to which these disclosures provide media competitors with unique advantages in the marketplace. Since no other media outlets are subject to the Access Act, it could be used to undermine the CBC's ability to compete – and to survive.

4) C-461 opens the door to privacy requests that could also jeopardize the CBC's journalistic integrity.
C-461 changes the Privacy Act by removing the CBC's right to exclude privacy information collected for reasons of journalism and instead makes disclosure of that information subject to a test of injury to the CBC's “independence.”

As an example, if the CBC was investigating an organized crime figure, that person could potentially take the CBC to court to force the Corporation to turn over any research they had uncovered about him or her – even before a report is broadcast. No private broadcaster would be subject to such provisions. This could seriously impede the CBC's ability to produce substantive journalism.

5) C-461 weakens the CBC's ability to protect its confidential journalistic sources.
Aware that prominent court decisions have strongly supported the media's right to protect confidential sources, the government has amended the original version of C-461 to allow the CBC to exclude any information that would reveal the identity of sources. However, the new law fails to clarify who is to determine if information would reveal sources. Under the existing act, as clarified by the courts, no one outside of the CBC can review such material. The amended C-461 is not clear on this point and will likely require several test cases and years of court proceedings to produce clear guidelines.

Meanwhile, the Information Commissioner of Canada contends that she has the right to review journalistic sources. That could make it less likely that whistleblowers will even approach the CBC. Under the new law, whistleblowers will know that if they approach the CBC with a story of governmental corruption, their identity might be revealed to a third party – the Information Commissioner and her staff. No other media outlet would be subject to this requirement. Despite assurances by the Commissioner that she and her staff will be able to protect the identity of sources, this change means that whistleblowers will be more likely to approach other news outlets rather than the CBC, and the public broadcaster's capacity to conduct investigative journalism may be damaged.

We, the undersigned are concerned about this threat to the CBC's ability to do its work. We are asking Canadians to contact their MPs and their Senators and ask them to stop Bill C-461.

Canadian Journalists for Free Expression (CJFE)
Arnold Amber, President

Alliance of Canadian Cinema, Television and Radio Artists (ACTRA)
Ferne Downey, National President

CWA/SCA Canada
Martin O'Hanlon, Director

Friends of Canadian Broadcasting
Ian Morrison, Spokesperson

The Canadian Association of Journalists (CAJ)
Hugo Rodrigues, President

Canadian Committee for World Press Freedom
Sue Allan, President

OpenMedia.ca
Steve Anderson, Founder and Executive Director

Leadnow.ca
Jamie Biggar, Executive Director

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Background:

Bill C-461 was promoted by its sponsor, Conservative MP Brent Rathgeber, as a way to force federal departments and crown corporations to disclose the salary of employees making more than $188,000 yearly and at the same time to make the CBC more accountable by changing sections of the Access to Information Act and the Privacy Act that affect the public broadcaster. With dual goals and a roundabout way of achieving them, C-461 was, from the start, an ill-conceived, complex piece of legislation with serious implications for freedom of expression and the integrity of the CBC's journalism.

As C-461 moved through the House, it became clear that the sponsor of the bill and the government had different and conflicting purposes for the legislation. The government, through the Department of Justice, introduced an amendment to C-461 so that salary disclosure would only begin with civil servants earning more than $444,000 yearly – thereby excluding all but the highest paid mandarins or executives of crown corporations. Feeling betrayed, Rathgeber resigned from the Conservative Party over what he saw as the party's gutting of his bill.

As organizations concerned about freedom of expression, we strongly object to the way this bill exploits the issue of CBC accountability – to the point of weakening its journalistic integrity – in the pursuit of that objective.

Canada's Access to Information Act is in urgent need of modernization. But what is needed is a comprehensive package of reforms, not minor tinkering with provisions targeting just one crown corporation. As the Information Commissioner told the Standing Committee On Access To Information, Privacy And Ethics on May 29th, there are potential risks in the C-461 approach:
"... challenges related to access to information are complex. They demand thoughtful, unified action and are not amenable to a 'piecemeal' solution ... While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way since this leads to issue-specific amendments which erode the Act's status as a law of general application."

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